In re Deshawn G. , 2015 IL App (1st) 143316 ( 2015 )

2014 IL App (1st) 143316
No. 1-14-3316
Opinion filed September 9, 2015
THIRD Division
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
In re DESHAWN G., a Minor, ) Appeal from the Circuit Court
) of Cook County.
(THE PEOPLE OF THE STATE OF ILLINOIS, )
)
Petitioner-Appellee, ) No. 14JD02
)
v. )
) The Honorable
DESHAWN G., a Minor, ) Stuart P. Katz,
) Judge, presiding.
Respondent-Appellant.) )
______________________________________________________________________________
JUSTICE FITZGERALD SMITH delivered the judgment of the court, with
opinion.
Justices Howse and Cobbs concurred in the judgment and opinion.
OPINION
¶1 This appeal arises from the trial court's October 2014 order following a jury trial
adjudicating respondent-appellant Deshawn G. to be a violent juvenile offender and
sentencing him to the Department of Juvenile Justice (DOJJ) until the age of 21, pursuant to
the mandatory sentencing provision of the Juvenile Court Act of 1987 (the Act) (705 ILCS
405/5-820 (West 2012)). That provision of the Act applies upon a minor's second finding of
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delinquency for an offense that, in an adult case, "would have been a Class 2 or greater
felony[,] involving the use or threat of physical force or violence," or which involves a
firearm. 705 ILCS 405/5-820 (West 2012).
¶2 Respondent was adjudicated delinquent based on a petition alleging three counts of
aggravated unlawful use of a weapon (AUUW) based on his lack of a valid Firearm Owner's
Identification (FOID) card; his age (under 21 years old); and his prior felony conviction.
Based on the prior adjudication of delinquency for aggravated robbery (a Class 1 offense)
and the Class 2 nature of the current offenses which were based upon a prior AUUW
conviction, the State filed a notice of intent to prosecute respondent as a violent juvenile
offender (VJO) under section 5-820 of the Act (705 ILCS 405/5-820 (West 2012)). After a
jury trial, respondent was adjudicated delinquent of two counts of AUUW based on his lack
of a valid FOID card and his youth. Respondent was later sentenced to a mandatory term of
confinement until age 21. Respondent appeals, contending: (1) the subsections of the
AUUW statute under which he was convicted are not severable from the section of the
AUUW statute that was found unconstitutional in People v. Aguilar, 2013 IL 112116, and
are, therefore, themselves unconstitutional; (2) the violent juvenile offender provision of the
Juvenile Court Act under which respondent was sentenced is unconstitutional; (3) the
admission of a certification alleging respondent's lack of a valid FOID card, prepared by a
non-testifying witness, violated his right to confrontation; and (4) respondent's adjudications
of delinquency for AUUW based on the lack of a valid FOID card and possessing a firearm
while under age 21 violated the one-act, one-crime doctrine. For the following reasons, we
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vacate respondent's adjudication for AUUW based on the lack of a FOID card, and affirm in
all other respects. 1
¶3 I. BACKGROUND
¶4 In January 2014, the State filed a petition for adjudication of wardship for respondent's
possession of a firearm on New Year's Eve 2013. Through the petition, the State alleged
three Class 2 felony counts of aggravated unlawful use of a weapon: count I for possessing a
firearm without a firearm owner's identification card under section 24-1.6(a)(3)(C) of the
Criminal Code of 2012 (the Code) (720 ILCS 5/24-1.6(a)(3)(C) (West Supp. 2013)); count II
for possessing a firearm while under age 21 and not engaged in lawful activities under the
Wildlife Code under section 24-1.6(a)(3)(I) of the Code (720 ILCS 5/24-1.6(a)(3)(I) (West
Supp. 2013); and count 3 for possessing a firearm while having a prior adjudication of
delinquency for a crime that would be a felony if committed by an adult under section 24-
1.6(a)(3)(D) of the Code (720 ILCS 5/24-1.6(a)(3)(D) (West Sup. 2013)). Prior to trial, the
State nolle prosquei'd the unlawful possession of a firearm and the AUUW based on the prior
adjudication, and the cannabis possession charge was stricken.
¶5 Prior to trial, the State filed written notice that it intended to prosecute 16-year old
respondent as a violent juvenile offender pursuant to section 5-820 of the Act (705 ILCS
405/5-820 (West 2012)) because the instant offense was a Class 2 felony and he had a prior
June 2012 adjudication of delinquency for the Class 1 felony of aggravated robbery.
Respondent then filed motions to dismiss the VJO petition, alleging (1) his prior
adjudications of delinquency were not equivalent to convictions so as to classify his current
AUUW charges as Class 2 felonies, thus making him subject to the VJO statute; and (2) that
1
We initially filed this decision as an unpublished order. We file this opinion now after granting the State's
subsequent motion to publish.
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prosecution under the VJO statute represents an improper double enhancement. Respondent
also filed motions to strike the Class 2 designation of the AUUW counts, alleging that the
prior AUUW adjudication upon which they are based was unconstitutional based on People
v. Aguilar, 2013 IL 112116, and that it was unclear which counts formed the basis for the
prior AUUW adjudication. Following a hearing, the trial court denied these motions.
¶6 Respondent also moved in limine to bar the State from introducing a certification from
the Illinois State Police firearm services bureau database which indicated that respondent had
never been issued a FOID card. The trial court denied the motion, ruling that the document
was a "signed and sworn" self-authenticating certification.
¶7 The State proceeded to trial on counts I (possession of a firearm without a firearm
owner's identification card under section 24-1.6(a)(3)(C) of the Code (720 ILCS 5/24-
1.6(a)(3)(C) (West Supp. 2013)) and count II (possession of a firearm while under age 21 and
not engaged in lawful activities under the Wildlife Code under section 24-1.6(a)(3)(I) of the
Code (720 ILCS 5/24-1.6(a)(3)(I) (West Supp. 2013)).
¶8 Respondent had a jury trial. At trial, Chicago Police officer Reginald Weatherly
testified that on December 31, 2013, he was in uniform traveling in an unmarked police
vehicle with three other police officers. The officers were conducting a safety mission in the
vicinity of 45th Street and Ellis Avenue in Chicago. He described a safety mission is "where
we have the majority of our team or all the officers in the districts ride on New Year's Eve
because we have a higher volume of calls for shots fired, so we'll ride four men to a car."
¶9 It was a snowy night, and the streets were covered in snow. Around 9:50 p.m., the
officers saw a "group of guys" walking along the sidewalk and in the street. The area was lit
by regular streetlights. Recognizing some of the individuals, including respondent, Officer
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Weatherly pulled up near the group and told them to slow down. Some stopped, but one
person, whom Officer Weatherly identified in court as respondent, continued walking.
Officer Weatherly addressed respondent by his street nickname, saying, "What's up Slushy?"
Respondent was the only person in the group not wearing a coat. Officer Weatherly asked
respondent, "You're not speaking today, Slushy?" Respondent looked at the officer and
continued walking. Officer Weatherly then cracked his car door in order to get out of the car,
and respondent fled.
¶ 10 As respondent ran, Officer Weatherly noticed that respondent was holding his side by
his hip and pocket. Based on prior experience, then, Officer Weatherly believed respondent
had a gun. Officer Weatherly attempted to restrain some of the other individuals in the group
who were running into the street. As he was doing so, he looked at respondent and saw him
fall. Officer Weatherly saw his partner, Officer Marcus Duncan, running toward respondent.
A short while later, Officer Duncan returned carrying a handgun. Soon after, backup officers
arrived, who eventually detained respondent. Officer Weatherly traveled to where
respondent was being detained and indentified respondent as the person who ran from him
earlier. Officer Weatherly testified that Officers Duncan, Hunt, and St. Andrew identified
respondent, as well. On cross-examination, Officer Weatherly agreed that he never saw
respondent with the handgun. Officer Weatherly testified that respondent did not produce a
FOID card.
¶ 11 Officer Duncan testified to much of the same activity as did Officer Weatherly. In
addition to corroborating testimony, Officer Duncan testified that when Officer Weatherly
called out to respondent, respondent picked up his pace, first walking faster and then running.
At that point, Officer Duncan exited the squad car and watched respondent. There was
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nothing between himself and respondent that would have blocked his vision. The street
lighting was such that Officer Duncan had no difficulty seeing respondent's face. While
Officer Duncan watched, respondent lost his footing and fell to the ground. When he stood
up, Officer Duncan saw respondent look left and right, and then bend down, extending his
right arm into the snow. Officer Duncan began chasing after respondent. When Officer
Duncan reached the spot where he had seen respondent reach into the snow, he saw a "nine
millimeter handgun sticking out of the snow with the butt facing up." The only other
impression in the snow was a handprint. Officer Duncan retrieved the weapon, noting that it
was fully loaded. Officer Duncan later identified respondent as the individual he had seen
reach into the snow.
¶ 12 The State introduced respondent's birth certificate, showing he was born in 1997, and
therefore was 16 years old at the time of the crime. The State also introduced, over
respondent's objection, a document from the Illinois State Police certifying that respondent
had never been issued a Firearm Owners Identification Card.
¶ 13 Respondent rested without testifying and without putting on any evidence.
¶ 14 The jury found respondent guilty of both counts of AUUW, one based on possessing a
firearm without a valid FOID card and the other for possessing a firearm while under the age
of 21. At a later dispositional hearing, the State introduced certified copies of respondent's
prior felony convictions for AUUW (2013); and aggravated robbery, robbery, aggravated
battery, and theft from person (2012). The State asked the trial court to sentence respondent
as a violent juvenile offender with a sentence to "at least 21 years of age." Defense counsel
renewed respondent's challenges to the VJO statute, but acknowledged that the trial court had
previously ruled on the motions in which he objected to the VJO statute. The trial court
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sentenced respondent under the VJO statute to a mandatory term of confinement until the age
of 21, noting that respondent would receive day-for-day good conduct credit.
¶ 15 Respondent appeals his adjudication and sentence.
¶ 16 II. ANALYSIS
¶ 17 i. Respondent's Severability Claim
¶ 18 On appeal, respondent first contends that his adjudications for aggravated use of a
weapon under section 24-1.6(a)(3)(C) and (a)(3)(I) are unconstitutional. Specifically,
respondent contends that because section (a)(3)(A) of the AUUW statute was struck down in
Aguilar as unconstitutional, and sections (a)(3)(C) and (a)(3)(I) of the AUUW statute under
which he was adjudicated are not severable from the portion that was struck down, sections
(a)(3)(C) and (a)(3)(I) of the AUUW statute are also unconstitutional. Therefore, argues
respondent, his two AUUW adjudications should be reversed. Specifically, he argues: "In
People v. Aguilar, subsection (a)(3)(A) of the AUUW statute was declared unconstitutional
on its face. [Citation.] That provision spoke to the essential conduct protected by the Second
Amendment—bearing a loaded firearm outside the home for self-defense. Because the
Aguilar provision concerned the very act at the heart of the AUUW statute, and because that
act cannot be criminalized, the provisions defining other versions AUUW, including
subsections (a)(3)(C) and (a)(3)(I), are not severable from the provision struck down by
Aguilar. This court should reverse [respondent's] adjudications as the two provisions of the
AUUW statute are unconstitutional." For the following reasons, we disagree.
¶ 19 On July 9, 2013, the Illinois General Assembly enacted the Firearm Concealed Carry
Act, which, in part, "amended the AUUW statute to allow for a limited right to carry certain
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firearms in public. See Pub. Act. 98-0063 (eff. July 9, 2013) ***." Aguilar, 2013 IL 112116,
¶ 22 n.4.
¶ 20 In Aguilar, our supreme court considered the constitutionality of section (a)(3)(A) of
the preamendment version of the AUUW statute. The court held that the Class 4 form of
AUUW as set forth in section 24-1.6(a)(1), (a)(3)(A), (d) (720 ILCS 5/24-1.6(a)(1),
(a)(3)(A), (d) (West 2008))—the preamendment version of the statute which "categorically
prohibit[ed] the possession and use of an operable firearm for self-defense outside the
home"—violated the second amendment. Aguilar, 2013 IL 112116, ¶¶ 21-22.
¶ 21 In the case at bar, respondent committed the AUUW on December 31, 2013. This was
nearly six months after July 9, 2013, the day the amended statute took effect. The Aguilar
court made it exceedingly clear that its decision only affected the preamended AUUW
statute. See Aguilar, 2013 IL 112116, ¶ 22 fn4 ("Neither the Firearm Concealed Carry Act
nor the amended AUUW statute is at issue in this case."). Respondent's argument, therefore,
fails insofar as it is based entirely on Aguilar and its progeny, as Aguilar does not apply to
the crime at hand.
¶ 22 Moreover, even if Aguilar did apply to respondent's crime and we were to consider this
issue on the merits, since the filing of the briefs herein, our supreme court has issued two
opinions resolving this issue. People v. Mosley, 2015 IL 115872; In re Jordan G., 2015 IL
116834. In those opinions, the court found subsections (a)(3)(C) and (a)(3)(I) do not violate
the second amendment, and held that subsections (a)(3)(C) and (a)(3)(I) are severable from
the provision found to be unconstitutional in Aguilar. Mosley, 2015 IL 115872, ¶¶ 27-31; In
re Jordan G., 2015 IL 116834, ¶¶ 16-19. Respondent acknowledges that this court is bound
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by Mosley and In re Jordan G., but argues that both opinions were decided incorrectly.
Respondent is correct that we are bound by the Mosley and In re Jordan G. decisions.
¶ 23 ii. The Constitutionality of the Violent Juvenile Offender Provision
¶ 24 Next, respondent contends the provision under which he was adjudicated, the violent
juvenile offender provision of the Act, is unconstitutional because it removes the sentencing
court's discretion in sentencing minors. Relying on Miller v. Alabama, 567 U.S. ___, 132 S.
Ct. 2455 (2012), respondent asserts that the VJO provision has many constitutional
infirmities.
¶ 25 A. Respondent's Facial Challenge to the VJO Provision
¶ 26 In addressing a challenge to the constitutionality of a statute, we begin with the
presumption that the statute is constitutional. See People v. Greco, 204 Ill. 2d 400, 406
(2003); accord People v. Malchow, 193 Ill. 2d 413, 418 (2000). If reasonably possible, a
court must construe the statute so as to uphold its constitutionality and validity. Greco, 204
Ill. 2d at 406; People v. Cosby, 305 Ill. App. 3d 211, 224 (1999) (we must affirm statute's
constitutionality and validity whenever possible). The party challenging the statute's
constitutionality has the burden of demonstrating its invalidity. Greco, 204 Ill. 2d at 406.
"Successfully making a facial challenge to a statute's constitutionality is extremely difficult,
requiring a showing that the statute would be invalid under any imaginable set of
circumstances. The invalidity of the statute in one particular set of circumstances is
insufficient to prove its facial invalidity." (Emphasis in original.) In re M.T., 221 Ill. 2d 517,
536-37 (2006).
¶ 27 The primary rule of statutory construction is to ascertain and give effect to the intent of
the legislature. People v. McChriston, 2014 IL 115310, ¶ 15. "The best evidence of
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legislative intent is the language used in the statute itself, which must be given its plain and
ordinary meaning." People v. Woods, 193 Ill. 2d 483, 487 (2000). "In construing a statute, a
court may also consider the reason and necessity for the law, the evils to be remedied, and
the objects and purposes to be obtained." Woods, 193 Ill. 2d at 487. In examining the
constitutionality of a statute, our review is de novo. Woods, 193 Ill. 2d at 487.
¶ 28 While the purpose of the Act is the rehabilitation of the minor (705 ILCS 405/5-101(c)
(West 2012)), the purpose and policy section of the Juvenile Court Act has been amended to
promote a juvenile justice system capable of dealing with the problem of juvenile
delinquency, a system that will protect the community, impose accountability for violations
of law, and equip juvenile offenders with competencies to live responsibly and productively
(705 ILCS 405/5-101 (West 2012)). Enumerated purposes of the Act now include to "protect
citizens from juvenile crime," and to "hold each juvenile offender directly accountable for his
or her acts." 705 ILCS 405/5-101(1)(a), (b) (West 2012). Our supreme court has recognized
that these amendments "represent a *** shift from the singular goal of rehabilitation to
include the overriding concerns of protecting the public and of holding juveniles accountable
for violations of the law." In re J.W., 204 Ill. 2d 50, 69 (2003).
¶ 29 In his arguments, respondent relies almost exclusively on a developing line of United
States Supreme Court cases including Miller v. Alabama, 567 U.S. ___, 132 S. Ct. 2455
(2012); Graham v. Florida, 560 U.S. 48 (2010); and Roper v. Simmons, 543 U.S. 551 (2005),
arguing these cases hold that fundamental differences between juvenile and adult minds
make children under 18 less culpable than adults for the same offenses and, thus, asserting
that additional constitutional protections for these juvenile offenders are required. The
Supreme Court held in Roper that the eighth amendment forbids the death penalty for
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juvenile offenders, finding that they "cannot with reliability be classified among the worst
offenders." Roper, 543 U.S. at 569. Next, it found in Graham that the eighth amendment
prohibits a sentence of life without the possibility of parole for juveniles who did not commit
homicide. See Graham, 560 U.S. at 74-75. These holdings culminated in Miller, wherein
the Supreme Court held that the eighth amendment prohibits a sentencing scheme that
mandates life in prison without the possibility of parole for juvenile offenders, including
those convicted of homicide, stating that a judge must first have the opportunity to examine
the circumstances involved. Miller, 567 U.S. at ___, 132 S. Ct. at 2469.
¶ 30 The Violent Juvenile Offender provision provides, in pertinent part:
"(a) Definition. A minor having been previously adjudicated a delinquent
minor for an offense which, had he or she been prosecuted as an adult, would have
been a Class 2 or greater felony involving the use or threat of physical force or
violence against an individual or a Class 2 or greater felony for which an element of
the offense is possession or use of a firearm, and who is thereafter adjudicated a
delinquent minor for a second time for any of those offenses shall be adjudicated a
Violent Juvenile Offender if:
(1) The second adjudication is for an offense occurring after
adjudication on the first; and
(2) the second offense occurred on or after January 1, 1995.
(b) Notice to minor. The State shall serve upon the minor written notice of
intention to prosecute under the provisions of this Section within 5 judicial days of
the filing of a delinquency petition, adjudication upon which would mandate the
minor's disposition as a Violent Juvenile Offender.
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***
(d) Trial. Trial on the petition shall be by jury unless the minor demands, in
open court and with advice of counsel, a trial by the court without a jury.
***
(f) Disposition. If the court finds that the prerequisites established in
subsection (a) of this Section have been proven, it shall adjudicate the minor a
Violent Juvenile Offender and commit the minor to the Department of Juvenile
Justice until his or her 21st birthday, without possibility of aftercare release, furlough,
or non-emergency authorized absence. However, the minor shall be entitled to earn
one day of good conduct credit for each day served as reductions against the period of
his or her confinement. The good conduct credits shall be earned or revoked
according to the procedures applicable to the allowance and revocation of good
conduct credit for adult prisoners serving determinate sentences for felonies.
For purposes of determining good conduct credit, commitment as a Violent
Juvenile Offender shall be considered a determinate commitment, and the difference
between the date of the commitment and the minor's 21st birthday shall be considered
the determinate period of his or her confinement." 705 ILCS 405/5-820 (West 2012).
¶ 31 Respondent claims a number of deformities with the VJO provision. We take each one
in turn herein.
¶ 32 a. Equal Protection and Substantive Due Process
¶ 33 Relying on Miller, respondent contends the VJO provision violates due process
because there is no rational basis related to the legitimate government interest expressed in
the Act. Specifically, respondent argues that the "one-size-fits-all arbitrary sentence" scheme
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of the VJO violates his substantive due process rights as provided in the United States and
Illinois Constitutions (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, § 2). He argues: (1)
requiring juveniles who have been designated as violent juvenile offenders to be committed
to the DOJJ until their 21st birthday does not serve the goal of protecting citizens from
juvenile crime; (2) the mandatory period of commitment until age 21 is contrary to the
purpose of holding each juvenile accountable for his own acts where, for example here,
respondent "was with a group of friends, and influenced by his gang membership,
demonstrating that his circumstances—not personality—were at the root of his criminality;"
(3) the VJO provision is in "direct opposition" to the Act's stated purpose of providing an
individualized assessment of each individual because, once a juvenile is designated a violent
juvenile offender, a sentencing court has no discretion in fashioning the juvenile's sentence;
and (4) the VJO provision does not further the goal of providing due process where children
are constitutionally different from adults for purposes of sentencing.
¶ 34 Respondent "acknowledges that the United States Supreme Court has not yet
considered whether juveniles have a due process right to individualized consideration at
sentencing," but argues that, "under the reasoning of Miller, Graham, and Roper, it seems
evident that such consideration is necessary to ensure that juveniles receive due process."
¶ 35 Respondent also argues the VJO provision violates the equal protection clauses of the
United States and Illinois Constitutions (U.S. Const., amend. XIV, § 1; Ill. Const. 1970, art. I,
§ 2) because it treats younger juveniles more harshly than older juveniles, which is "contrary
to the idea of lessened culpability for the youngest juvenile offenders as discussed in Miller."
When the courts treat both younger and older juvenile offenders as violent juvenile offenders,
the process unconstitutionally results in younger juveniles designated as violent offenders
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always having longer incarceration times than older juveniles designated as violent offenders.
Respondent posits this unequal treatment serves no legitimate government purpose and,
therefore, violates equal protection guarantees.
¶ 36 The due process clause of the United States Constitution provides that no "State [shall]
deprive any person of life, liberty, or property, without due process of law." U.S. Const.,
amend. XIV, § 1. Similarly, the due process clause of the Illinois Constitution provides that
"[n]o person shall be deprived of life, liberty or property without due process of law." Ill.
Const. 1970, art. I, § 2. " 'Under substantive due process ***, a statute is unconstitutional if
it impermissibly restricts a person's life, liberty or property interest.' " People v. Johnson,
225 Ill. 2d 573, 584 (2007) (quoting People v. R.G., 131 Ill. 2d 328, 342 (1989)).
¶ 37 The equal protection analysis is the same under either the Illinois or United States
Constitution. People v. Shephard, 152 Ill. 2d 489, 499 (1992); U.S. Const., amend. XIV, § 1;
Ill. Const. 1970, art. I, § 2. The equal protection clause "guarantees that similarly situated
individuals will be treated in a similar fashion, unless the government can demonstrate an
appropriate reason to treat them differently." In re Jonathon C.B., 2011 IL 107750, ¶ 116.
This guarantee allows the legislature to create distinctions between different groups of people
as long as that distinction avoids "criteria wholly unrelated to the legislation's purpose." In re
Jonathon C.B., 2011 Ill. 107750, ¶ 116. The parties here agree that respondent's equal
protection claim is governed by the rational basis test. This test simply inquires whether the
method or means employed by the statute to achieve the stated goal or purpose of the
legislation are rationally related to that goal. In re Jonathon C.B., 2011 IL 107750, ¶ 116.
The court will not make this rational basis inquiry, however, until the movant proves he is
similarly situated to the comparison group. People v. Masterson, 2011 IL 110072, ¶ 25. If a
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movant cannot meet this preliminary threshold, the equal protection claim fails. People v.
Whitfield, 228 Ill. 2d 502, 513 (2007).
¶ 38 This court has previously addressed and rejected both a due process and an equal
protection challenge to the VJO provision of the Act. In In re M.G., 301 Ill. App. 3d 401
(1998), the First District, Fifth Division of this court rejected a due process challenge to the
VJO statute. In re M.G., 301 Ill. App. 3d at 407. We considered People ex rel. Carey v.
Chrastka, 83 Ill. 2d 67 (1980), in which our supreme court rejected the challenging minors'
arguments that the Habitual Juvenile Offender Act violated due process, and determined that
the same reasoning should apply to the challenging minor's allegations regarding the VJO
statute. In re M.G., 301 Ill. App. 3d at 407-08. We recognized that the legislature has the
authority to establish minimum sentences for juveniles. In re M.G., 301 Ill. App. 3d at 407.
We observed that it was " 'entirely reasonable and constitutionally permissible' " for the
legislature to conclude that juveniles who have committed two serious violent offenses
within a short period of time should be subject to mandatory confinement to the age of 21. In
re M.G., 301 Ill. App. 3d at 407 (quoting Chrastka, 83 Ill. 2d at 80). We held:
"We find M.G.'s distinction between the two statutes [(the Violent Juvenile
Offender provision and the Habitual Juvenile Offender Act)] unpersuasive.
Chrastka establishes that neither of the constitutional provisions cited is violated
merely because the legislature mandates a disposition in certain situations. While
legislative action may limit the courts' discretion, it is not necessarily
unconstitutional. The limitation of the courts' role can be remedied by the
legislature's treatment of the subject. Indeed, the issues of seriousness of the
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offense and rehabilitation have apparently already been considered in the
disposition set by the legislature in the Violent Juvenile Offender Act.
*** [T]he legislature could legitimately conclude that an individual who
has committed two serious violent offenses has benefited little from the
rehabilitative measures of the juvenile court system and exhibits little prospect for
restoration to meaningful citizenship within that system. The rehabilitative
purposes of the system are not forsaken but, after the commission of a second
serious offense, the interest of society's protection receives additional
consideration. We hold it constitutionally permissible for the legislature to
authorize the disposition specified in the Violent Juvenile Offender Act." In re
M.G., 301 Ill. App. 3d at 408.
¶ 39 We note here that, in his reply brief, respondent acknowledges In re M.G., but argues
that we should not follow it because it relied upon "Chrastka's unsound logic" which should
no longer be followed in light of Roper, Graham, and Miller. Respondent quotes at length a
recent decision of the Third Division of this court, In re Shermaine S., 2015 IL App (1st)
142421, which upheld the habitual juvenile offender provision of the Juvenile Court Act
while at the same time expressing reservations about its constitutionality. In that decision,
the court rejected a juvenile's reliance on Miller to challenge the continuing validity of
Chrastka, finding Miller distinguishable because it involved defendants who committed
crimes as juveniles but were charged and convicted in the adult court system. In re
Shermaine S., 2015 IL App (1st) 142421, ¶¶ 18-22. Additionally, the court expressly noted
that, as an appellate court, it was "compelled" to follow the supreme court precedent
established in Chrastka, 83 Ill. 2d at 81, which had previously upheld the constitutionality of
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the habitual offender mandatory sentencing provision of the Act. In re Shermaine S., 2015
IL App (1st) 142421, ¶ 1. It stated:
"We note, however, that the mandatory sentencing provision of the Act, which
removes all discretion of the trial court in sentencing certain repeat juvenile
offenders, is ripe for reconsideration. Illinois has been a national leader in the
field of juvenile justice since the Illinois legislature enacted 'An Act to regulate
the treatment and control of dependent, neglected and delinquent children' (1899
Ill. Laws 131)—or the Illinois Juvenile Court Act—on July 1, 1899. The first
juvenile court in the country was located in Chicago across the street from Hull
House, an effective and prominent social service agency founded by social
reformer Jane Addams. It was Addams who rallied the movement for a separate
juvenile justice system, which would remove children from being tried and
imprisoned by the adult criminal system. And it was Addams who cautioned,
'social advance depends as much on the process through which it is secured as
upon the result itself.' Jane Addams, Peace and Bread in Time of War, 133
(1922).
During the intervening decades, however, the pendulum has swung back
and forth on the legal system's handling of juvenile offenders as adults. Recent
research on the effect that the unique qualities and characteristics of youth may
have on juveniles' judgment and actions warrants reconsideration of some
provisions of the Act, particularly those that remove or reduce the trial judge's
discretion in considering some of those qualities and characteristics in sentencing
a juvenile. We must ask ourselves whether precluding a trial judge's discretion
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wrongly deprives juveniles of what Justice Kennedy's majority opinion in
Graham v. Florida, 560 U.S. at 79, 130 S. Ct. 2011, called 'the opportunity to
achieve maturity of judgment and self-recognition of human worth and potential.'
As our supreme court recently noted in People v. Patterson, 2014 IL
115102, [***], in discussing automatic transfers of juveniles to adult court,
'[w]hile modern research has recognized the effect that the unique qualities and
characteristics of youth may have on juveniles' judgment and actions [citation],
the automatic transfer provision does not. Indeed, the mandatory nature of that
statute denies this reality.' Patterson, 2014 IL 115102, ¶ 111 [***]. The court
'strongly urge[d] the General Assembly to review the automatic transfer provision
based on the current scientific and sociological evidence indicating a need for the
exercise of judicial discretion in determining the appropriate setting for the
proceeding in these juvenile cases.' Id. We suggest that similar reconsideration is
necessary in the context of the Act's habitual offender provision to ensure
preservation of the fundamental purpose of juvenile proceedings—the child's
rehabilitation, treatment, and welfare." In re Shermaine S., 2015 IL App (1st)
142421, ¶¶ 32-34.
¶ 40 Although we recognize that the Third Division of this court expressed discomfort with
Chrastka, we also recognize, as it did, that it was bound by the supreme court opinion in
Chrastka. We, too, are bound by that opinion, and we, too, decline respondent's invitation to
disregard appellate decisions crafted in reliance on that opinion.
¶ 41 Respondent also urges us to decide that In re M.G., in which this court already
determined the VJO provision was constitutional, is no longer valid due to the recent line of
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Supreme Court cases including Roper, Graham, and Miller. We decline to do so, however,
as our supreme court has recently instructed that those decisions are closely limited to the
"most severe of all criminal penalties" such as life without parole. See People v. Patterson,
2014 IL 115102, ¶ 110. In this case, 16-year-old respondent was sentenced to a mandatory
term of confinement until the age of 21, with the possibility of day-for-day good conduct
credit, a sentence which is a far cry from "the most severe of all penalties." In Patterson, our
supreme court, in pertinent part, upheld the automatic transfer provision of the Act (705
ILCS 405/5-130 (West 2008)) and defined the limitations of the Roper, Graham, and Miller
line of cases. Patterson, 2014 IL 115102, ¶ 89. To that extent, we find the court's discussion
of the matter worth inclusion here:
"Finally, defendant suggests that, at a minimum, the combination of the
transfer statute and the applicable sentencing provisions is unconstitutional as
applied to non-homicide offenders because they are 'categorically less deserving
of the most serious forms of punishment than are murderers.' Graham, 560 U.S.
at 69. Because defendant did not kill or intend to kill, he claims he has a 'twice
diminished moral culpability' and does not deserve the most severe punishments.
[Citation.] Defendant asserts that youthfulness must be considered whenever 'a
harsh adult sentence' is given to a minor because juveniles' distinctive traits are
not crime-specific, citing Miller, 567 U.S. at ___, 132 S. Ct. at 2465. In support,
defendant also cites [People v.] Leon Miller, [202 Ill. 2d 328, 340-41 (2002)],
where this court found the imposition of a mandatory life sentence on a 15-year-
old convicted of two counts of first degree murder based on accountability after
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an automatic transfer to adult court unconstitutional because the youth's age and
personal culpability were never considered.
Here, defendant was sentenced to 12 years in prison on each of three counts
of aggravated criminal sexual assault. The sentences were required to be served
consecutively (730 ILCS 5/5-8-4(a)(ii) (West 2008)), and defendant was
statutorily mandated to serve at least 85% of his total prison term (730 ILCS 5/3-
6-3(a)(2)(ii) (West 2008)), or 30 years, 7 months. Although lengthy, that term is
not comparable to either the death penalty or ' "the second most severe penalty
permitted by law,' " life in prison without parole (Graham, 560 U.S. at 69
(quoting Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J.,
concurring in part and concurring in the judgment, joined by O'Connor and
Souter, JJ.))). The Supreme Court has clearly distinguished the latter sentences
from any others, noting both the uniqueness of the ' "severity and irrevocability' "
of the death penalty and the 'characteristics with death sentences that are shared
by no other sentences' besides life without parole. Graham, 560 U.S. at 69
(quoting Gregg v. Georgia, 428 U.S. 153, 187 (1976) (joint opinion of Stewart,
Powell, and Stevens, JJ.)). The Supreme Court has also instructed that '[a] State
is not required to guarantee eventual freedom to a juvenile offender convicted of a
nonhomicide crime,' but only to give those offenders 'some meaningful
opportunity to obtain release based on demonstrated maturity and rehabilitation,'
expressly leaving the specific mechanism and means to each state. Graham, 560
U.S. at 75. Most recently, in Miller the Court reiterated the Graham rationale and
emphasized the 'unprecedented' nature of the Court's expansion of its categorical
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ban to the imposition of life without parole for juveniles in nonhomicide cases.
Miller, 567 U.S. at ___, 132 S. Ct. at 2466.
Similarly, this court has unanimously declined to expand the narrow rule in
Graham to all juveniles sentenced to life without parole for homicides. Davis,
2014 IL 115595, ¶¶ 48-49. Although defendant relies on Leon Miller, that
decision is inapposite. There, we described the minor defendant as 'the least
culpable offender imaginable,' having been convicted of two murders solely on
the theory of accountability. Nonetheless, he was subject to mandatory life in
prison with no possibility of parole. Leon Miller, 202 Ill. 2d at 341. In our ruling,
we focused on the particular harshness and obvious lack of proportionality of that
sentence in light of the unique facts of the case. We expressly:
'agree[d] with defendant that a mandatory sentence of natural life in prison
with no possibility of parole grossly distorts the factual realities of the case
and does not accurately represent defendant's personal culpability such
that it shocks the moral sense of the community. This moral sense is
particularly true, as in the case before us, where a 15-year-old with one
minute to contemplate his decision to participate in the incident and stood
as a lookout during the shooting, but never handled a gun, is subject to life
imprisonment with no possibility of parole—the same sentence applicable
to the actual shooter.' Leon Miller, 202 Ill. 2d at 341.
Nonetheless, we refrained from barring the imposition of a life sentence on any
juvenile offender, denying any implication 'that a sentence of life imprisonment
for a juvenile offender convicted under a theory of accountability is never
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appropriate.' As we explained, '[i]t is certainly possible to contemplate a situation
where a juvenile offender actively participated in the planning of a crime resulting
in the death of two or more individuals, such that a sentence of natural life
imprisonment without the possibility of parole is appropriate.' Leon Miller, 202
Ill. 2d at 341.
Accordingly, both this court and the United States Supreme Court have
closely limited the application of the rationale expressed in Roper, Graham, and
Miller, invoking it only in the context of the most severe of all criminal penalties.
A prison term totalling 36 years for a juvenile who personally committed three
counts of aggravated criminal sexual assault does not fall into that category. We
decline defendant's invitation to extend the Supreme Court's eighth amendment
rationale to the facts of this case." (Emphasis omitted.) Patterson, 2014 IL
115102, ¶¶ 107-10.
¶ 42 We note, as discussed by this court in In re Shermaine S. (In re Shermaine S., 2015 IL
App (1st) 142421, ¶¶ 32-34), that our supreme court expressed reservations regarding the
sentencing court's lack of discretion in crafting a sentence. It stated:
"We do, however, share the concern expressed in both the Supreme Court's
recent case law and the dissent in this case over the absence of any judicial
discretion in Illinois's automatic transfer provision. While modern research has
recognized the effect that the unique qualities and characteristics of youth may
have on juveniles' judgment and actions (see, e.g., Roper, 543 U.S. at 569-70;
infra ¶ 156), the automatic transfer provision does not. Indeed, the mandatory
nature of that statute denies this reality. Accordingly, we strongly urge the
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General Assembly to review the automatic transfer provision based on the current
scientific and sociological evidence indicating a need for the exercise of judicial
discretion in determining the appropriate setting for the proceedings in these
juvenile cases." Patterson, 2014 IL 115102, ¶ 111.
¶ 43 Similar reconsideration may be necessary in the context of the Act's violent juvenile
offender provision. As the law stands today, however, we find In re M.G. is well-reasoned
and unchanged by the Roper, Graham, Miller line of cases, and we see no reason to depart
from its holding that the violent juvenile offender provision of the Act does is not violative of
due process. In re M.G., 301 Ill. App. 3d at 407.
¶ 44 The equal protection claim reasoning from In re M.G. also applies to the case at bar.
Specifically, this court found in In re M.G.:
"The Violent Juvenile Offender Act has the apparent purpose of protecting
society from an individual who has committed two serious violent offenses
involving the use or threat of physical force or violence against an individual or
possession or use of a firearm. To further its purpose, the legislature determined
that a violent juvenile offender should be confined until the age of 21. Like the
Habitual Juvenile Offender Act, the interest in protecting society is compelling in
cases involving such serious juvenile offenders, and we do not find the disparity
resulting from the mandatory disposition to invalidate the statute." In re M.G.,
301 Ill. App. 3d at 409.
¶ 45 In Chrastka, our supreme court expressly rejected the claim that a juvenile is denied
equal protection solely because his confinement until age 21 might be longer than another
individual's term for the same offense. Specifically, the court stated:
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"[W]e believe that the interest in protecting society from the habitual juvenile
offender has, through experience, proved to be as compelling as the interest in
protecting society from the habitual adult offender, and the broad authority of
State legislatures to deal with adult recidivists is well recognized (Rummel v.
Estelle (1980), 445 U.S. 263 ***; Spencer v. Texas (1967), 385 U.S. 554, 559-560
***). We do not believe that the fortuitous disparity of the terms of confinement
of habitual juvenile offenders which results from the variance in age of such
individuals serves to invalidate the means chosen to effectuate the purpose of the
Act. 'The Constitution permits qualitative differences in meting out punishment
and there is no requirement that two persons convicted of the same offense
receive identical sentences.' (Williams v. Illinois (1970), 399 U.S. 235, 241 ***).
And as stated in Skinner v. Oklahoma ex rel. Williamson (1942), 316 U.S. 535,
539-40 ***, 'Under our constitutional system the States in determining the reach
and scope of particular legislation need not provide "abstract symmetry." Patsone
v. Pennsylvania (1914), 232 U.S. 138, 144. They may mark and set apart the
classes and types of problems according to the needs and as dictated or suggested
by experience.' " Chrastka, 83 Ill. 2d at 81.
¶ 46 Similar to Chrastka, respondent here claims the VJO provision fails to account for an
age difference among juveniles who are designated as violent juvenile offenders and argues
that this "disparate treatment" is irrational and unconstitutional. Our supreme court,
however, rejected a nearly identical claim in Chrastka, and we do here, as well. Where there
need not be "absolute symmetry" in sentencing, and where the legislature has clearly
expressed that the purpose of the Act is the rehabilitation of the minor as well as
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"promot[ing] a juvenile justice system capable of dealing with the problem of juvenile
delinquency, a system that will protect the community, impose accountability for violations
of law and equip juvenile offenders with competencies to live responsibly and productively"
(705 ILCS 405/5-101 (West 2012)); and where our supreme court has instructed that the
Roper, Graham, and Miller decisions are closely limited to the "most severe of all criminal
penalties" such as life without parole (Patterson, 2014 IL 115102, ¶ 110), we find no
violation of equal protection here.
¶ 47 b. Eighth Amendment and the Proportionate Penalties Clause
¶ 48 Next, relying on the Supreme Court's decision in Miller, respondent contends that the
VJO provision is an unconstitutional violation of the eighth amendment of the United States
Constitution (U.S. Const., amend. VIII) as well as the proportionate penalties clause of the
Illinois Constitution (Ill. Const. 1970, art. I, § 11). The VJO provision requires that, once the
predicate offense for VJO status has been proven, the court shall commit the minor to the
DOJJ until his 21st birthday. 705 ILCS 405/5-820 (West 2012). Respondent argues that the
mandatory nature of this sentencing structure violates both the eighth amendment and the
proportionate penalties clause because it removes the trial court's discretion in sentencing
minors who are subject to this provision.
¶ 49 Statutes carry a strong presumption of constitutionality. See Greco, 204 Ill. 2d at 406;
accord Malchow, 193 Ill. 2d at 418. If reasonably possible, a court must construe the statute
so as to uphold its constitutionality and validity. Greco, 204 Ill. 2d at 406; Cosby, 305 Ill.
App. 3d at 224. The party challenging the statute's constitutionality has the burden of
demonstrating its invalidity. Greco, 204 Ill. 2d at 406. "Successfully making a facial
challenge to a statute's constitutionality is extremely difficult, requiring a showing that the
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statute would be invalid under any imaginable set of circumstances. The invalidity of the
statute in one particular set of circumstances is insufficient to prove its facial invalidity."
(Emphasis in original.) In re M.T., 221 Ill. 2d at 536-37.
¶ 50 The eighth amendment prohibits, in pertinent part, the imposition of "cruel and unusual
punishments." U.S. Const., amend VIII. The eighth amendment applies to the States
through the fourteenth amendment. Roper, 543 U.S. at 560. "The eighth amendment, as
applied to the states through the fourteenth amendment, prohibits the imposition of cruel and
unusual punishment for criminal offenses that are disproportionate in relation to the offense
committed or the status of the offender." In re Shermaine S., 2015 IL App (1st) 142421, ¶
17. Article I, section 11 of the Illinois Constitution, commonly known as the proportionate
penalties clause, provides in pertinent part that "[a]ll penalties shall be determined ***
according to the seriousness of the offense." Ill. Const. 1970, art. I, § 11. "[T]he Illinois
proportionate penalties clause is co-extensive with the eighth amendment's cruel and unusual
punishment clause ***." Patterson, 2014 IL 115102, ¶ 106 (citing In re Rodney H., 223 Ill.
2d 510, 518 (2006)).
¶ 51 The First Division of this court recently addressed and rejected this precise argument
in In re Isaiah D., 2015 IL App (1st) 143507. In that case, the juvenile Isaiah had been
adjudicated an habitual juvenile offender (HJO) and a violent juvenile offender, and
sentenced pursuant to the mandatory sentencing provisions of the Act to the DOJJ until the
age of 21. In re Isaiah D., 2015 IL App (1st) 143507, ¶ 1; 705 ILCS 405/5-815, 5-820
(West 2012). On appeal, the juvenile raised a number of issues, the pertinent one to this
cause being a constitutional challenge to the VJO statute. In re Isaiah D., 2015 IL App (1st)
143507, ¶ 2. The juvenile argued that the mandatory sentencing provisions of both the VJO
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provision and the HJO provision under which he was sentenced were an unconstitutional
violation of the eighth amendment of the United States Constitution, as well as the
proportionate penalties clause of the Illinois Constitution because the mandatory nature of the
provisions "removes the trial court's discretion in sentencing minors." In re Isaiah D., 2015
IL App (1st) 143507, ¶ 51.
¶ 52 The court initially noted that our supreme court has held that neither the eighth
amendment nor the proportionate penalties clause apply to juvenile proceedings initiated by a
petition for adjudication of wardship because "a juvenile adjudication of wardship was not
criminal in nature and did not impose 'punishment' within the meaning of the eighth
amendment and proportionate penalties clause." In re Isaiah D., 2015 IL App (1st) 143507,
¶ 52 (citing In re Rodney H., 223 Ill. 2d at 520-21). The court noted, nonetheless, that even if
those constitutional provisions did apply, established Illinois precedent still rejects the
juvenile's arguments. In re Isaiah D., 2015 IL App (1st) 143507, ¶ 52.
¶ 53 Just as respondent in the case at bar relies on Miller for his eighth amendment
challenge, so, too, did the juvenile respondent in In re Isaiah D. The court rejected this
reliance, stating:
"[R]espondent relies on Miller v. Alabama, [citation], which held that imposition
of mandatory life sentences without the possibility of parole for persons under the
age of 18 at the time of their crimes violates the eighth amendment. [Citation.]
However, we have specifically rejected a juvenile's reliance on Miller to challenge
the continuing validity of Chrastka. See Shermaine S., 2015 IL App (1st)
142421, ¶¶ 21-25; A.P., 2014 IL App (1st) 140327, ¶¶ 18-22. In particular, we
have found that Miller is distinguishable because it involved defendants who
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committed crimes as juveniles but were charged and convicted in the adult court
systems. [Citation.] Moreover, we have noted that Miller 'did not hold that the
eighth amendment prohibited any mandatory penalties for juveniles, only
mandatory natural life sentences without the possibility of parole.' (Emphasis in
original.) [Citation.] Thus, we have concluded that Miller is 'factually
distinguishable and does not support deviating from precedent established in
Chrastka, which, as an appellate court, we are required to follow.' Shermaine S.,
2015 IL App (1st) 142421, ¶ 25. In this case, respondent urges that both A.P. and
Shermaine S. were wrongly decided, but raises no new argument to warrant
departing from those decisions. Thus, we again conclude that Chrastka remains
binding and reject respondent's eighth amendment challenge to the HJO and VJO
mandatory sentencing provisions." In re Isaiah D., 2015 IL App (1st) 143507, ¶
56.
¶ 54 The court then considered and rejected the juvenile's proportionate penalties argument,
finding that, where our supreme court has stated that the " 'Illinois proportionate penalties
clause is co-extensive with the eighth amendment's cruel and unusual punishment clause,' "
(In re Isaiah D., 2015 IL App (1st) 143507, ¶ 58 (quoting Patterson, 2014 IL 115102, ¶ 106,
citing In re Rodney H., 223 Ill. 2d at 518)), "our rejection of respondent's eighth amendment
challenge pursuant to our supreme court's decision in Chrastka would likewise compel
rejection of his proportionate penalties argument." In re Isaiah D., 2015 IL App (1st)
143507, ¶ 58. The court stated:
"In fact, we recently applied that logic in rejecting a proportionate penalties
challenge: '[B]ecause in Chrastka, our supreme court held that sentencing a
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habitual juvenile offender to a mandatory minimum sentence *** did not violate
the eighth amendment and the proportionate penalties clause provides coextensive
protections, we also reject [the juvenile's proportionate penalties] challenge to the
habitual juvenile offender provision under our state constitution." In re Isaiah D.,
2015 IL App (1st) 143507, ¶ 58 (quoting In re Shermaine S., 2015 IL App (1st)
142421, ¶ 31).
¶ 55 Finally, the Isaiah D. court very specifically extended the reasoning in A.P. and In re
Shermaine S., by which those courts rejected constitutional challenges to the HJO mandatory
sentencing provision, to the VJO mandatory sentencing provision:
"We recognize that, although our decisions in A.P. and Shermaine S. [on
which the court relied] concerned challenges only to the HJO mandatory
sentencing provision in section 5-815 of the Juvenile Court Act, respondent here
challenges both that provision and its VJO counterpart in section 5-820 of the
Juvenile Court Act. [Citation.] However, respondent's arguments are identical
with respect to both provisions, and he has offered no persuasive reason to
distinguish his case from the identical eighth amendment and proportionate
penalties challenges that our court has rejected with respect to the HJO statutory
provision mandating commitment until the age of 21. We see no reason why our
decisions rejecting the same challenges to the HJO provision do not apply with
equal force to the equivalent VJO provision. Accordingly, we conclude that
respondent's [eighth amendment and proportionate penalties] arguments with
respect to both the HJO and VJO mandatory sentencing provisions of the Juvenile
Court Act must fail." In re Isaiah D., 2015 IL App (1st) 143507, ¶ 61.
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¶ 56 We find In re Isaiah D. well-reasoned and on-point. We agree that the reasoning from
the precedent regarding challenges to the HJO mandatory sentencing provision is relevant to
our analysis of the present constitutional challenges to the VJO mandatory sentencing
provision. We see no reason to deviate from the determination in the In re Isaiah D. opinion
that the VJO mandatory sentencing provision of the Act does not violate the eighth
amendment of the United States Constitution nor the proportionate penalties clause of the
Illinois Constitution. We therefore reject respondent's arguments in this regard.
¶ 57 B. As-Applied Constitutional Challenge
¶ 58 Respondent also makes an as-applied challenge to the VJO provision, arguing that his
due process rights, guarantees of equal protection, and eighth amendment protections were
violated where the trial court was unable, because it was constrained by the mandatory VJO
sentencing requirements, to consider respondent's personal circumstances, including his good
behavior while incarcerated, his youth, and his rehabilitative potential when crafting
respondent's sentence. He specifically points out that the crime for which he was adjudicated
delinquent in the case at bar was a "non-violent incident;" and that, while in juvenile
incarceration pending trial, respondent "dedicated himself to reforming and conforming his
conduct to society's expectations for a young man," has earned the respect of his peers and
the jail staff, has "shirked gang activity," has earned good grades, and has participated in fine
arts and behavioral management. He believes the trial court should have been free to
consider these points when crafting his sentence, rather than being bound by the mandatory
sentencing requirements of the VJO provision.
¶ 59 In an as-applied challenge to a statute, "the party challenging the statute contends that
the application of the statute in the particular context in which the challenger has acted, or in
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which he proposes to act, would be unconstitutional." People v. Brady, 369 Ill. App. 3d 836,
847 (2007). "An 'as-applied' challenge requires a party to show that the statute violates the
constitution as the statute applies to him." Brady, 369 Ill. App. 3d at 847. Our supreme court
has stated:
" 'A court is not capable of making an "as applied" determination of
unconstitutionality when there has been no evidentiary hearing and no findings of
fact. [Citation.] Without an evidentiary record, any finding that a statute is
unconstitutional "as applied" is premature. [Citations.] Nor would it be
appropriate for this court, sua sponte, to consider whether [a] statute has been
constitutionally applied since we, as a reviewing court, are not arbiters of the
facts." People v. Mosley, 2015 IL 115872, ¶ 47 (quoting In re Parentage of John
M., 212 Ill. 2d 253, 268 (2004)).
¶ 60 The State argues, and we agree, that it would be improper for this court to render a
decision on the merits of this argument in light of the lack of evidence before us, where this
issue was not raised in the trial court and there was no evidentiary hearing or findings of fact
as to this issue. Respondent's constitutional claims, therefore, are limited to the VJO
provision's facial validity. See, e.g., Mosley, 2015 IL 115872, ¶ 48 (citing Lebron v. Gottlieb
Memorial Hospital, 237 Ill. 2d 217, 228 (2010) ("When there has been no evidentiary
hearing and no findings of fact, the constitutional challenge must be facial" (citing In re
Parentage of John M., 212 Ill. 2d at 268))).
¶ 61 iii. The Confrontation Clause and the One-Act, One-Crime Doctrine
¶ 62 Next, respondent contends that the admission by the State at trial of a certification
alleging respondent's lack of a valid FOID card in support of his adjudication of AUUW (No
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FOID) was testimonial and violated his right to confrontation under Crawford v. Washington,
541 U.S. 36, 43 (2004). Specifically, respondent argues that the admission of the
certification, which was prepared by a non-testifying witness, violated his constitutional right
of confrontation under the United States Constitution (U.S. Const., amends. VI, XIV) and the
Illinois Constitution (Ill. Const. 1970, art. I, § 8). Respondent contends that, because of this
alleged confrontation violation, we should reverse his adjudication for AUUW (No FOID).
¶ 63 In the alternative, respondent contends he was adjudicated delinquent for two counts of
AUUW (one based on lack of a valid FOID card and the other based on his age) for but one
single act. Because these adjudications are based upon the same physical act of possessing a
single firearm, the less serious of the two adjudications should be vacated.
¶ 64 Our supreme court has instructed that "cases should be decided on nonconstitutional
grounds whenever possible, reaching constitutional issues only as a last resort." In re E.H.,
224 Ill. 2d 172, 178 (2006) (on review of case regarding a juvenile delinquency, our supreme
court admonished reviewing court below not to reach confrontation issue where it was
possible to decide the issue on nonconstitutional grounds). In the case at bar, the State urges
us to determine that respondent was improperly adjudicated delinquent on two counts for a
single act. It suggests that we avoid the constitutional issue, vacating the AUUW count
based on lack of a valid FOID card, and thereby deciding the issue on nonconstitutional
grounds. We first consider the one-act, one-crime issue.
¶ 65 Under the one-act, one-crime doctrine, multiple convictions may not be based on the
same physical act. See People v. Miller, 238 Ill. 2d 161, 165 (2010); People v. King, 66 Ill.
2d 551, 566 (1977). If the same physical act forms the basis for two separate offenses
charged, a defendant could be prosecuted for each offense, but only one conviction and
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sentence may be imposed. People v. Segara, 126 Ill. 2d 70, 77 (1988). "[I]f a defendant is
convicted of two offenses based upon the same single physical act, the conviction for the less
serious offense must be vacated." People v. Johnson, 237 Ill. 2d 81, 97 (2010). The one-act,
one[-]crime doctrine applies to juvenile adjudications of delinquency. In re Samantha V.,
234 Ill. 2d 359, 375 (2009). "Whether a conviction should be vacated under the one-act, one-
crime doctrine is a question of law which the court reviews de novo." In re Angel P., 2014
IL App (1st) 121749, ¶ 63.
¶ 66 Here, although respondent concedes that he waived this issue by failing to object at
trial, we review one-act, one-crime issues pursuant to principles of plain error. People v.
Harvey, 211 Ill. 2d 368, 389 (2004) (a violation of the one-act, one-crime doctrine affects the
integrity of the judicial process, thereby satisfying the second prong of the plain error
analysis and justifying our consideration).
¶ 67 Turning then to the merits of this issue, we initially note that the State agrees with
respondent that one adjudication of delinquency should be vacated. Here, the same physical
act, that is, respondent's possession of the handgun on January 31, 2013, formed the basis for
the two adjudications of delinquency. We therefore agree with the parties that, under the
one-act, one-crime rule, respondent should be adjudicated delinquent under a single count of
the AUUW statute. Specifically, respondent "should be sentenced on the most serious
offense and the less serious offense should be vacated." Samantha V., 234 Ill. 2d at 379.
¶ 68 "In determining which offense is the most serious, we are instructed to consider the
plain language of the statutes, as common sense dictates that the legislature would prescribe
greater punishment for the offense it deems the more serious." Samantha V., 234 Ill. 2d at
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379. Here, however, both adjudications are Class 2 felonies, and both adjudications carry the
same sentence because respondent was adjudicated a violent juvenile offender.
¶ 69 "If the punishments are identical, we are instructed to consider which offense has the
more culpable mental state." Samantha V., 234 Ill. 2d at 379. In this case, however, the
mental states are also identical. We find the Second Division of this court's resolution of a
similar issue in People v. Akins, 2014 IL App (1st) 093418-B, instructive here. In that case,
the defendant was convicted of four counts of AUUW, including counts for possession of a
firearm on one's person or in one's vehicle without a valid FOID card, as well as possession
of a firearm on the public way. Akins, 2014 IL App (1st) 093418-B, ¶ 3. The defendant
appealed, arguing in pertinent part that his convictions for AUUW based on possession of a
firearm on his person or in his vehicle without a valid FOID card and for possession of the
same firearm on the public way violated the one-act, one-crime prohibition of multiple
convictions for the same physical act. Akins, 2014 IL App (1st) 093418-B, ¶ 17. The court
determined that there was, indeed, a one-act, one-crime problem, as the two counts were for
the same physical act. Akins, 2014 IL App (1st) 093418-B, ¶ 19. Like the case at bar,
however, the punishments and the mental states for both counts were identical. Akins, 2014
IL App (1st) 093418-B, ¶ 19. The court resolved the issue, noting:
"Both offenses are Class 4 felonies and have the same mental state. However,
count II, possession of a firearm on one's person or in a vehicle without a valid
FOID card, is arguably the less serious offense. Possessing a firearm on the
public way without a valid FOID card is potentially more dangerous because of
the likelihood of interaction with other people and the possibility of injuring
others. Accordingly, we vacate defendant's conviction under count II.
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Defendant's conviction under count IV remains." Akins, 2014 IL App (1st)
093418-B, ¶ 19.
¶ 70 In similar fashion, and in recognition that our aim as an appellate court is to decide
issues in a nonconstitutional manner whenever possible (In re E.H., 224 Ill. 2d at 178-81),
we find in this particular circumstance that count II, possessing a firearm while under age 21
is arguably the more serious offense, as respondent had only just turned 16 years of age at the
time of the crime, is admittedly affiliated with a gang, and has a history of prior run-ins with
the law and adjudications of delinquency based on gun crimes. Accordingly, we vacate
respondent's adjudication under count I (No FOID). Respondent's adjudication under count
II remains.
¶ 71 III. CONCLUSION
¶ 72 For all of the foregoing reasons, we vacate count I pursuant to the one-act, one-crime
rule. We affirm the decision of the circuit court of Cook County in all other respects.
¶ 73 Affirmed in part; vacated in part.
35